View metadata, citation and similar papers at core.ac.uk brought to you by CORE NYLS Journal of International and Comparative Law Volume 11 Number 3 SYMPOSIA: 1990 Article 5 1990 PROSECUTION IN CANADA FOR CRIMES AGAINST HUMANITY David Matas Follow this and additional works at: https://digitalcommons.nyls.edu/ journal_of_international_and_comparative_law Part of the Law Commons Recommended Citation Matas, David (1990) "PROSECUTION IN CANADA FOR CRIMES AGAINST HUMANITY," NYLS Journal of International and Comparative Law: Vol. 11 : No. 3 , Article 5. Available at: https://digitalcommons.nyls.edu/journal_of_international_and_comparative_law/vol11/iss3/ 5 This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Journal of International and Comparative Law by an authorized editor of DigitalCommons@NYLS. PROSECUTION IN CANADA FOR CRIMES AGAINST HUMANITY DAVID MATAS * I have been asked to address five questions. Why did I push for prosecution of Nazi war crimes and crimes against humanity? Why did Canada decide in favor of prosecuting of Nazi war criminals and criminals against humanity found in Canada? Why is it important to prosecute these crimes in the way we have in Canada? What are the justifications of punishment? How has it worked out? I will attempt to answer, briefly, each of the questions in turn. But first I will discuss what Canada has done to date. I. CANADIAN ACTION TO DATE There is a whole body of international criminal offenses that is punishable by the Canadian legal system, no matter where the crime was committed, no matter what the nationality of the accused, no matter what the nationality of the victim, provided only that the criminal is found in Canada.' The current list of offenses includes piracy, hijacking, hostage taking, attacks on diplomats, threats to use nuclear material, torture, war crimes and crimes against humanity.2 The offenses are punishable even if committed before the enactment • Senior Counsel, League for Human Rights, B'nai B'rith Canada; B.A., 1964, University of Manitoba; M.A., 1965, Princeton University; B.A. (Juris.), 1967; B.C.L. 1968, Oxford University. 1. D. MATAS & S. CHARENDOFF, JUSTICE DELAYED: NAZI WAR CRIMINALS IN CANADA 112 (1987) ("Mhe Criminal Code endows the government with extraterritorial jurisdiction for certain offenses regarded as threatening to the world community."); Green, Canadian Law and the Punishment of War Crimes, 28 CHITrY'S L.J. 249, 253 (1980); Matas, Prosecuting Crimes Against Humanity: The Lessons of World War 1, 13 FORDHAM INT'L L.J. 86, 101 (1989-90). 2. D. MATAS & S. CHARENDOFF, supra note 1, at 112. [T]he Criminal Code already extends universal jurisdiction to Canadian courts over offenses relating to aircraft hijacking, piracy and offenses against diplomats. The recent Criminal Law Amendment Act, Bill C-18, added two more crimes to this list of international offenses, or 'universal crimes': theft of nuclear materials and hostage taking. The Bill C-18 was tabled before the House of Commons in 1984, war crimes justice advocates requested that war crimes and crimes against humanity be included, but were turned down on the basis that the proposal was not germane to the subject of the bill. Despite this technical issue, the merit of this approach remains. Id. N.Y.L. SCH. J. INT'L & COMP. L. [Vol. I11 of Canadian law rendering such offenses punishable, as long as the acts were punishable at international law at the time they were committed.3 The Canadian law of war crimes and crimes against humanity is unique in its breadth. While there are several jurisdictions that have legislated against Nazi war crimes, the Canadian legislation was enacted with the Nazi war crimes in mind, but was not restricted to them." Canada has launched three cases under the new law-the cases of Imre Finta, Michael Pawlawsky and Stephen Reistetter. Imre Finta, a former Hungarian national, was charged on December 9, 1987 with war crimes and crimes against humanity.5 The Crown unsealed a preferred indictment against Finta on August 18, 1988.6 Pretrial motions began June 5, 1989. 7 Jury selections began on Novem- 3. Id. at 107-08. mhe Supreme Court of Canada has ruled that customary international law, unless it conflicts with a Canadian legal principle, forms part of domestic law. The Canadian Charter of Rights and Freedoms also incorporates customary international law as a primary source of Canadian criminal law. It provides that anyone charged with an offence has right to be found not guilty, unless at the time the act was committed, it was an offence under Canadian or international law, or was criminal according to the general principles of law recognized by the community of nations. This Charter is an implied recognition that customary international law offenses are domestic offenses, giving Canada jurisdiction to prosecute these crimes, even in the absence of specific criminal legislative provisions. Id. 4. Id. at 108. Mhe War Crimes Act, passed by Parliament in 1946, directly incorporates the principles of customary international law. Enacted for the very purpose of prosecuting war criminals, it was specifically drafted to apply retroactively to crimes committed from 1939 onward [unlike the Geneva Conventions Acts which do not expressly state that its application is retroactive to 1939, id. at 110-11] and to govern no matter where the crimes took place. Its significance lies in a clear acceptance of the principle that retroactive procedural law, together with extra-territorial jurisdiction and customary international law can be used to determine the nature of a 'war crime' and to govern no matter where the crimes took place. Its significance lies in a clear acceptance of the principle that retroactive procedural law, together with extraterritorial jurisdiction and customary international law can be used to determine the nature of a 'war crime' and to punish guilty parties. Id.; see Watson, CanadaHunts for Nazi War Criminals, but Critics Question Commitment, L.A. Times, June 19, 1988, § 1, at 18, col. 1. 5. See Babad, Canada Charges Hungarian Immigrant with War Crimes, U.P.I., Dec. 10, 1987; Long, Former Hungarian Charged with War Crimes in Canada, Reuters, Dec. 10, 1987. 6. No Preliminary Hearingfor Man Going to Trial on War Crimes Charge, Globe & Mail (Toronto), Aug. 23, 1988, at Al, col. 1. 7. Platiel, Rescind War Crimes Law, Finta Lawyer Urges Court, Globe & Mail 1991] CANADIAN PROSECUTIONS OF NAZI WAR CRINALS ber 15, 1989.1 Opening statements were made to the jury on November 9 22, 19 89 . The case was heard in a Toronto court. Finta was acquitted on May 25, 1990.10 The Crown is appealing the acquittal." Michael Pawlowski, of Renfrew, Ontario, was charged on December 19, 1989, with war crimes and crimes against humanity committed in Byelorussia during World War 11.12 Stephen Reistetter, of St. Cather- ines, Ontario, was charged on January 18, 1990, with crimes committed in Czechoslovakia during World War I1I. 1 Neither the trial of Pawlowski nor the trial of Reistetter has begun. There are also two alleged Nazi war criminals against whom proceedings were launched in Canada under domestic law. Albert Helmut Rauca was arrested in 1982 and extradited in 1983 for trial in West Germany for war crimes.14 He died in a West German prison before his case came to trial."5 Jacob Liutjens has been subject to denaturalization proceedings in Vancouver because it is claimed that he failed to disclose on his arrival in Canada his involvement in war crimes in the Netherlands during World War I.6 The evidence in the Liutjens case is complete (Toronto), June 6, 1989, at A19, col. 1. 8. Jury Chosen in Canada's First War Crimes Trial, Reuters, Nov. 21, 1989. 9. Platiel, First War Crimes Trial Cleared to Start Today, Globe & Mail (Toronto), Nov. 22, 1989, at 1, col. 1. 10. Claiborne, Hungarian Accused in Canada is Acquitted of War Crimes, Wash. Post, May 26, 1990, § 1, at A25, col. 1. 11. See Kezwer, Crown Set to Appeal Finta Not Guilty Verdict, Canadian Jewish News (Toronto), June 21, 1990, at 5, col. 1. 12. Vienneau, War Crimes Suspect Charged in 490 Deaths, Toronto Star, Dec. 19, 1989, at 1, col. 1. 13. Canadian Charged with 1942 Kidnapping of 3,000 Jews, Reuters, Jan. 18, 1990. 14. Former Nazi on Way to West Germany to Stand Trial for War Crimes, U.P.I., May 21, 1983; Martin, Canada Orders Extradition ofAccused Nazi, N.Y. Times, Nov. 5, 1982, at A3, col. 1. See generally D. MATAS & S. CHARENDOFF, supra note 1, at 24, 31, 33, 55, 82-85, 95-97, 100-02, 115; Comment, Her Majesty the Queen and the Federal Republic of Germany v. Albert Helmut Rauca: International Law-Nationality-Jurisdiction- Extradition, 33 U. NEW BRUNSWICK L.J. 333 (1984). 15. See Long, Former Hungarian Charged with War Crimes in Canada, Reuters, Dec. 10, 1987. 16. D. MATAS & S. CHARENDOFF, supra note 1, at 98. [In 1981, Ottawa] refused a[n] . extradition request from the Dutch government for the surrender of Jacob Luitjens, a Vancouver resident convicted in absentia in 1948 in Holland as a Nazi party member responsible for two deaths and sentenced to twenty years in prison. The Dutch asked that Luitjens be extradited for 'aiding and abetting the enemy in a time of war.' Canada's extradition treaty with the Netherlands signed in 1899, refers only to the crime of murder, and not complicity with foreign occupation in general. Despite the N.Y.L. SCH. J. INT'L & COMP. L. [Vol. I1I and the trial judge has reserved his judgement, which is pending. I. ADVOCATING THE PROSECUTION OF NAZI WAR CRIMINALS The position I took then and take now is that pushing for the prosecution of any criminal should not be necessary.